Momentous decisions by the Supreme Court

This week, the Supreme Court handed out four very momentous decisions.

• Shelby County v Holder:  Section 4 of the Voting Rights Act on 1965 was designed to prevent discrimination in voting by requiring a list of state and local governments identified by Congress in the 1960s as having a history of voting discrimination to get approval from the federal government before making any changes to their voting laws or procedures.  In a 5-4 decision, the Supreme Court revoked section 4.

There is a lot of hand wringing about this decision.  The liberal consternation is because according to the 15th Amendment of the Constitution:

"Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation."

So, liberals suggest that this law, which passed with near unanimous support in Congress derives its legitimacy from section 2 of the 15th amendment.

The decision is best explained at this post.   

To understand the decision we need to understand that just a week before in the Pyrrhic 7-2 victory for liberals in Arizona v. The Inter Tribal Council of Arizona, Justice Antonin Scalia takes pains to explain that the right to decide who can vote rests with the states.  It's part of states' sovereignty.   

In this decision, what Justice Roberts seems to be arguing is that: (a) its extraordinary to override states' prerogative in a discriminatory manner, (b) the law was justified when passed because of extraordinary circumstances, (c) circumstances have changed to a point where the states being discriminated against can't actually be shown to be materially worse than many not under such scrutiny.   

So, in this analysis its irrelevant whether racial discrimination still exists, whether racial discrimination in voting still exists or even whether racial discrimination in voting more common in Section 5-covered jurisdictions than elsewhere.  Instead, to override state sovereignty, what needs to be shown is that the original rationale for section 4 still exists.

The way the decision is worded, it appears to leave preclearance as constitutional and restricts its challenge the formula.  One view, proffered by the Conservatives, suggests that the opinion dooms Section 5 as well, as it suggests that any form of preclearance is wrong.  My own reading is that it might not be exactly right.  If the standard being applied was uniform, based on recent data, and clearly designed to enforce the 15th Amendment it may not fall foul of the Conservatives.  So, arguably, if Congress passes a law that subjects any jurisdiction which breaches a certain threshold of discrimination to a preclearance standard may be constitutional.

• In a 5-4 decision in United States v Windsor, the Supreme Court ruled DOMA unconstitutional.  Under this ruling, wherever the words, husband, wife, spouse or marriage appears in Federal law, the Federal government must defer to the states' definition, i.e. if the states recognize gay marriage, so must the Federal government.  This does not, however, necessitate states which currently ban gay marriage to recognize gay marriage.

• In yet another 5-4 decision in Hollingsworth v Perry, Chief Justice Roberts was joined by Justices Breyer, Ginsburg, Scalia and Kagan in ruling that the proponents did not have standing to appeal the California Supreme Court's decision to rule the California's Proposition 8 banning gay marriage unconstitutional.  With this decision, as of August 1, 2013 gay marriage will be permitted in the District of Columbia and thirteen states: California, Connecticut, Delaware (where a new law takes effect July 1), Iowa, Maine, Maryland, Massachusetts, Minnesota (where a new law takes effect August 1), New Hampshire, New York, Rhode Island (also Aug. 1), Vermont, and Washington.

• In a 5-4 decision on Adoptive couple vs Baby girl the Supreme Court essentially ruled that the law in question, the Indian Child Welfare Act, was designed to protect existing families and not to protect the rights of absentee fathers.  In this case, since the father had not shown any interest in the child until much later, he had essentially relinquished his rights and there was no familial relationship to protect and so it wasn't covered by the Indian Child Welfare Act.  Justice Sotomayer, Ginsburg and Kagan dissented, pointing out the the court's ruling was too broad and would set unwanted precedents for exclusion. Justice Scalia also dissented pointing out that this was a case where there was a biological father who wanted to have a relationship with his daughter.  Now the drama continues as the father claims that the ruling means that others in the Cherokee nation have rights while the adoptive parents want the girl immediately.

It is fascinating to see the conservative justices try to explain their opposition to repeal of DOMA.  After all, DOMA infringes on state rights and is discriminatory.  On the liberal side, while I understand their consternation with the Shelby County v Holder, their argument would suggest that the 15th amendment gives the Federal government unfettered right to intervene in a discriminatory manner in voting, despite the fact that they unanimously agree in  Arizona v. The Inter Tribal Council of Arizona that its a state right.  Surely, that can't be right!  Remember Shelby County v Holder does not rule that the Voting Rights Act is unconstitutional. It does not even, as yet, rule the preclearance requirement in section 5 unconstitutional.  It merely suggests that using a formula for intervention based on the realities in 1960s is unconstitutional as it can't be sufficient justification for overriding state rights.